Attorney general: Ballot box selfie ban constitutional

Justin Timberlake sparked debate in October after he shared a selfie on Instagram that showed him casting his ballot at the New Bethel Missionary Baptist Church in Germantown, near Memphis.(Photo: File / The Tennessean)

A 2015 law banning ballot box selfies does not violate Tennessee voters' free speech rights, according to a formal opinion issued by the Tennessee attorney general.

But the Memphis lawmaker who sought the opinion says he hopes to overturn the law after legislators reconvene in January.

Justin Timberlake sparked debate over the little-known law in October, when he shared a selfie with 39 million-plus Instagram followers that showed him casting his ballot at the New Bethel Missionary Baptist Church in Germantown, near Memphis. Timberlake, who lives in California but recently bought property near Nashville, said he had no idea he was doing anything illegal.

The law, which makes it a misdemeanor punishable by a $50 fine or up to 30 days in jail and makes it a crime to shoot images inside a voting booth, does not violate the right to freedom of speech guaranteed by the First Amendment because it provides reasonable regulations designed to ensure the privacy of a ballot, promote speed and efficiency of the voting process and prevent disruption and distraction for voters, including voter intimidation, the attorney general concluded.

A polling place is not a public forum; it is a space for voters to privately cast a ballot, the Dec. 22 opinion said. Any regulation of free speech in a nonpublic forum is constitutional as long as it reasonably relates to a legitimate government interest. Banning videos or photos in the polling booth meets that standard, the opinion concluded.

It was not hard to imagine the "ripple effects from a ballot selfie causing an even further delay" at polling locations, the opinion noted, laying out this potential scenario:

"Consider: Voter A takes a selfie. Voter B, worried that the selfie captured her ballot, asks a poll worker to inspect the photograph. This alone delays and disrupts voting and it could only worsen if Voter A then retakes the selfie. The disruption could also distract other voters, causing more delay, much like a traffic jam causing rubbernecking."

The opinion will not deter Rep. G.A. Hardaway from an effort to repeal the law, which he believes interferes with the way younger voters communicate, he said Tuesday.

"Young people these days communicate more by digital means than myself and a majority of my colleagues," Hardaway said. "I think we are infringing on their right to free speech when we put unnecessary conditions that have absolutely nothing to do with the voting experience."

Hardaway said he sees the selfies as a motivating tool to get other voters to the ballot box. He is drafting a bill that would allow ballot box selfies as long as they are not disrupting the privacy of other voters.

The law was originally passed as a way to expand the rights of voters' use of cellphones at polling locations, according to state Sen. Brian Kelsey, R-Germantown.

Kelsey said the intent of the 2015 legislation was to allow mobile phone usage in places like Shelby County, where he said the local election commission had banned their use. The law says that county election commissions cannot prohibit a voter from using a mobile phone "for informational purposes to assist the voter in making election decisions."

But it also explicitly bans voter use of cellphones to make phone calls, record, take photographs or video inside polling places.

Federal law does not prohibit taking images inside polling booths, but at least 19 states, including Tennessee, have banned the practice.

Timberlake was not charged in connection with posting his October ballot box selfie and has since removed the photograph from his Instagram account.